CITIZENSHIP AND IMMIGRATION
Status in Canada
Permanent Residents
Humanitarian and Compassionate Considerations
Judicial review of denial of Immigration and Refugee Protection Act (IRPA), s. 25(1) application for exemption, on humanitarian and compassionate (H&C) grounds, of requirement to obtain immigrant visa outside Canada— Applicant, 35‑year‑old Costa Rican citizen, arrived in Canada as visitor June 21, 1999, claimed refugee protection August 4, 1999—Departure ordered in May 2000—Refugee application later denied—Meanwhile, married woman who had helped prepare refugee application—Since June 2001 applicant caring stepfather to woman’s daughter, father to daughter born to him, wife in 2002—When refugee application rejected, applicant filed for pre‑removal risk assessment (PRRA), applied for admission on H&C grounds—PRRA application refused, applicant ordered to report for removal February 11, 2003 and arrest warrant issued as order disobeyed—Moved in with brother‑in‑law, failed to notify immigration officials of address change so letter requesting information for H&C application came back to immigration officials marked “moved”—Moved again in January 2004—Later that month, when official phoned place of work, asked for new address, phone number, applicant stated did not know—By letter dated January 13, 2004 to workplace, applicant notified H&C exemption request rejected—No reason for rejection given in letter—Record includes “Decision and Rationale” indicating Minister’s representative not satisfied couple residing together in bona fide relationship, finding it odd person would not know where resides, forming opinion applicant wished to withhold this information—Issues: (1) whether officer erred in considering evidence as to genuine nature of marriage; (2) whether officer failed to consider best interests of children— Officer mistaken as to when spouses met, married— Conclusion marriage “hastily” entered ground for finding marriage not bona fide, entered into for immigration purposes—Failure to provide new address when phoned at work irrelevant to genuine nature of marriage—Ministerial guidelines provide applicant, sponsor be afforded opportunity to respond to any concerns and failure to do so herein resulted in lack of fairness in process—While guidelines not law, may assist Court in determining whether unreasonable exercise of H&C power—Applicant urging rationale’s brief reference to children not satisfying obligation to be alert, sensitive to their best interests, as required by Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 and now by IRPA, s. 25(1)—Minister citing Owusu v. Canada (Minister of Citizenship and Immigration), [2004] 2 F.C.R. 635 (F.C.A.), arguing onus on applicant to adduce evidence regarding best interests of child but he only said he loved them—At time of Owusu, Act not imposing obligation on officer to consider interests of child when deciding H&C application but, under IRPA, s. 25(1), Minister must take into account best interests of a child directly affected—In Hawthorne v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555, C.A. affirmed careful, sympathetic consideration had to be given to best interests of children and not enough just to refer to those interests— Applicant bearing burden of establishing relies on that factor and of establishing that their best interests would be adversely affected if application denied—While s. 25(1) may be seen as merely codification of Baker requirements and as not imposing more detailed assessment, it does establish statutory duty to consider those interests—Applicant submitting officer made aware he was working full time, was sole financial supporter of family—Statement in rationale “I recognize and acknowledge that the couple have a child together and that Mr. Dias Fonseca has played some role in the raising of Ms. Cardenas’ daughter from a previous relationship” demonstrating no consideration of best interests of children and that constitutes error of law under both requirements set out by S.C.C. in Baker, IRPA—Application allowed, H&C application referred for reconsideration by different Ministerial representative—Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 25(1).
Fonseca v. Canada (Minister of Citizenship and Immigration) (IMM‑1172‑04, 2005 FC 709, MacKay D.J., order dated 17/5/05, 11 pp.)